Short Circuit: A Roundup of Recent Federal Court Decisions

Sex trafficking, child-pornography solicitation, and FERC.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Dedicated readers will remember that just before the new year, the Nevada Supreme Court held that the state constitution's search-and-seizure rights could be enforced through private damages suits and that qualified immunity did not apply. (IJ filed a brief and participated in oral argument as an amicus, asking for just that result.) And Short Circuit listeners will remember that earlier last year, the Michigan Supreme Court reached a similar result to hold that rights in its constitution could be enforced through damages actions, too. In a recent article, IJ's Nick Sibilla dives into how this kind of robust state constitutional accountability contrasts with constitutional claims in federal court that run into the qualified immunity buzzsaw.

• When Barbra Streisand filed a $50 mil lawsuit against a photographer for invasion of privacy after he published a picture of her home, it led to the vastly wider distribution of that photo and the coining of the "Streisand effect," the phenomenon in which an attempt to hide, remove, or censor information leads to the unintended consequence of increasing awareness of that information. Some people haven't learned the lesson. See, e.g., In re: Tara A. Demetriades, No. 20-2559 (Second Circuit, Jan. 18, 2023) (denying motion to keep attorney disciplinary matter under seal).
• This Third Circuit case in which a current law student wins a resounding victory for a pro se prisoner might seem to undermine the rationale for lawyer licensure, but it's just one anecdote with no broader implications.
• Pro tip from the Third Circuit: Strive to live your life in such a way that an appellate court never describes your "reputation for sanctionable conduct before tribunals around the country" as "well documented." Aim instead for something like "unjustified" or, at a minimum, "unexpected and disappointing."
• In which the Fourth Circuit reaffirms that precedent from the 1970s is still both instructive and binding, just as Creedence Clearwater Revival remains totally righteous no matter what your niece says on TikTok.
• This Fourth Circuit case in which a current law student wins a resounding victory for a pro se prisoner might seem to undermine the rationale for lawyer licensure, but it's just one anecdote with no broader implications.
• Wedding photography company takes pictures not of weddings, but of the vendors servicing weddings, like florists. (Markets in everything!) It brings an antitrust suit against (and defames) two traditional wedding photographers whose exclusivity requirements precluded some potential business. Texas courts: A picture may be worth a thousand words, but this frivolous lawsuit is worth $41,518.75 in sanctions—which bankrupts the company. Do you take the lawyer who filed the frivolous suit to be liable for malpractice in the bankruptcy proceedings? Fifth Circuit: I do.
• The Louisiana Public Service Commission is deeply unhappy with certain of the rates filed by a nuclear-power company. The one pathway for the commission to challenge those rates is through filing a complaint with the Federal Energy Regulatory Commission. One of those complaints has been stagnating for six years; two others have languished for over four. Louisiana commission to Fifth Circuit: Congress did not intend for the process to be quite this molasses-like. Mandamus please? Fifth Circuit: It sure looks like FERC might need to quit FERC-ing around. The agency has 21 days to give us a meaningful explanation for its delays.
• Asking for a friend (who happens to be an insurance company): Were state and local governments' economic costs dealing with opioid over-distribution "because of bodily injury"? Sixth Circuit: No.
• Curiosity may have killed the cat, but, the Sixth Circuit reminds us, curiosity alone would not have given the cat Article III standing.
• St. Anthony isn't just the patron saint of lost things; he's also the patron saint of swineherds. One of the more industrial-sized operations he watches over raised piggies in Scott County, Ill. Neighbors alleged the farm negligently handled hog waste "resulting in foul and offensive odors and toxic gases" plus "runoff of swine effluent" and numerous other unsaintly things. They sue in state court. Two insurers defend the farm but a third insurer claims it doesn't have to. St. Anthony—and the insurance-defense lawyers—come through and the farm wins! Then, the insurers all sue each other in federal court. Can the two insurers find indemnity with the third? Seventh Circuit: Better start praying.
• Husband and wife are both employees at a Kokomo, Ind. transmission plant. Eventually, their employer notices that the two are taking suspiciously overlapping periods of FMLA leave. They're investigated, then suspended, after which the husband sues, insisting everything was on the up-and-up. Husband: My wife's irritable bowel syndrome flare-ups sometimes would trigger my anxiety and other medical conditions. Wife: And my IBS sometimes would be triggered by stressful situations like my husband's medical conditions. Seventh Circuit: The employer was justified in its honest suspicion that Jim and Della were abusing their FMLA leave.
• Allegation: During Black Lives Matter protests outside the Florissant, Mo. police station, the police declare an unlawful assembly five times and order protestors to disperse even though the protesters had not committed the underlying crime of unlawful assembly. Protestors sue the city for enforcing an unconstitutional and unwritten arbitrary policy. Eighth Circuit: Police can declare an unlawful assembly even if there's no crime. Complaint does not plausibly state a claim. Dissent: It's plausible the protestors were targeted.
• Agents trace suspected producer of child pornography to Bettendorf, Iowa, escort him to a vehicle, repeatedly tell him he's free to leave whenever he wishes and can decline to answer questions. He answers questions for over ninety minutes, makes incriminating statements, consents to a search of two cell phones, ultimately is charged with possessing and producing child pornography, is convicted, and is sentenced to 50 years' imprisonment. Man: I should've been Mirandized before answering the agents' questions. Eighth Circuit: Except you weren't in custody at that time. Judgment affirmed.
• Allegation: Police in the St. Peters, Mo. police department create a text messaging group about ongoing Black Lives Matter protests. One cop shares a parody video that's critical of the protests. Someone complains. The cop is told he should resign. He does, but then sues, arguing he was retaliated against in violation of the First Amendment. Eighth Circuit: The cop shared the video in his capacity as a private citizen and it involved a matter of public concern. Case undismissed.
• One for the chutzpah files: California man kidnaps and transports 12-year-old girl to Las Vegas to prostitute her. After being caught, he enters a plea agreement dropping the most serious charges against him in exchange for two lesser criminal charges and restitution to the 12-year-old. After entering the agreement, he changes lawyers, and his new lawyer argues that the district court lacks authority to enforce the restitution agreement. The district court reluctantly agrees. Ninth Circuit: MANDAMUSED!
• California cannabis entrepreneurs sue former business partners and others for doing a RICO through mail and wire fraud. Is it a RICO? Ninth Circuit: Pish posh! You cannot do the RICO against a business that is a federal crime.
• You might think that writing Short Circuit is just a fun romp through endless discussions of Younger abstention, but we also have to summarize 40-page Tenth Circuit opinions about child sex trafficking.
• Florida man is sentenced for conspiracy to possess with intent to distribute a controlled substance. He's sentenced as a career offender, dramatically lengthening his sentence, because this is his third "controlled substance offense." OR IS IT? The definition of "controlled substance offense" in the sentencing guidelines does not include inchoate offenses such as conspiracy, but the commentary to the definition does include them. Which one binds the sentencing court? Eleventh Circuit (en banc): Now that SCOTUS has revisited Auer deference, we have to find the rule genuinely ambiguous before we turn to the commentary, and this rule is perfectly clear. Dissent: There's an on-point SCOTUS case that says otherwise and is still binding on us no matter how we might think the Court would approach the issue today.
• Florida child-pornography aficionado cruises "mom blogs," asking moms—in disgusting detail that we read so you don't have to—to send him pornographic pictures of their daughters. "T'was but a jape! He was but a troll!" argues his lawyer. Eleventh Circuit: The vast trove of child pornography found on his personal computer belies that argument.
• And in en banc news, the Fifth Circuit will reconsider its opinion holding that the FDA did not, among other things violate the "surprise switcheroo" doctrine (::sigh:: seriously) in entering marketing denial orders against two e-cigarette companies.
• And in further en banc news, the Ninth Circuit will reconsider its opinion that the San Jose Unified School District likely violated the Free Exercise Clause by selectively enforcing its non-discrimination policy against a religious student club.

The Institute for Justice is now interviewing talented law students from across the country for our summer fellowship program: the Dave Kennedy Fellowship. Students are hosted in Arlington, Miami, Austin, Tempe, and Seattle. The program offers law students an unparalleled professional opportunity to substantively contribute to active and future strategic litigation in both state and federal courts. During your summer with us, you would have the opportunity to work closely with IJ attorneys to develop litigation strategies and assist in the nuts and bolts of cutting-edge civil rights litigation, including drafting motions and briefs, crafting discovery requests, and preparing for hearings. The fellowship is a paid opportunity—offering $7,000 for the 10-week program—and generally runs from the last week of May through early August. Applications are due by January 27th and offers will be made on a rolling basis. For more information, visit www.ij.org/jobs.

Comments

[rloquitur]

The Jane Doe case--60-96 months, that's it? LWOP seems more like it to me.

[LawTalkingGuy]

Don’t feel like looking up the guidelines but this range strikes me as appropriate for the actual charge he pled to, which seems like a pretty broad catchall, and is not a reflection of the seriousness of the conduct he did. Which as you suggest should be much more severely punished.

Prosecutors must have thought they had some proof problems (although I don’t see how given that Jane Doe was apparently participating in the proceedings enough to be seeking enforcement of a restitution order) which is why they let him plead to a felony with a much lower guidelines range.

[MatthewSlyfield]

"Prosecutors must have thought they had some proof problems"

Could they perhaps have thought that it was more important to secure restitution for Jane Doe? In other words not that they though they might have trouble convicting him at all, but rather that they might not get convictions on specific charges with mandatory restitution.

[SomeGuy 2]

Possibly but the whole restitution thing seems strange. Does this guy actually have the 1.5 million USD she wants? Doubtful, although I guess possible if the criminal's past ventures were more successful and he invested wisely or something. I'm also not so sure about that 1.5 million damage calculation, but under the circumstances the court probably isn't asking too many questions if she REALLY has lost future wages and the like.

[MatthewSlyfield]

Actually, her first ask was only $15K.

He complained that that was calculated on the wrong statute.

The problem is the right statute allows claims for loss of future income. For someone young, even a smallish percentage loss in earning potential can add up to big numbers.

As to the court not questioning her damage calculation, the trial court didn't consider it at all because it initially decided it didn't have the authority to enforce the restitution.

The appellate court remand order explicitly orders the district court to take evidence and hear argument from both sides on the damages calculation. So no, the $1.5M is not fixed at this point.

[David Nieporent]

That Jane Doe was willing to participate in sentencing-related stuff does not necessarily mean she was willing to publicly at a trial. And it's also possible that prosecutors might have assessed that she'd have been a terrible witness.

As a lawtalkingguy you are certainly familiar with clients who you believe, but who you know you just can't let them be deposed.

[Noscitur a sociis]

The Guidelines are generally determined by what the defendant actually did, not just what they get convicted of. In particular, the Guideline for § 1952, 2E1.2, contains a cross-reference to the underlying unlawful conduct. So the Guideline should have been the same (with adjustments for statutory maximums and minimums, of course).

[LawTalkingGuy]

The agreement didn’t have a reference to the conduct though.

[Noscitur a sociis]

Which means that the judge is supposed to make the necessary factual findings as part of the guidelines calculation at sentencing.

[Dr. Ed 2]

How is that not denying trial by jury, etc?

We all know prosecutors overcharge -- let's say I am accused of having robbed 10 banks but only robbed four and someone else robbed the other six. And I plead guilty to robbing one bank but -- remember -- still only robbed four.

I am to be punished on the basis of having robbed 10, even though I neither plead to that nor was convicted of robbing the other six? Am I missing something here?

[Michael P]

Pleading guilty waives the right to a trial.

The discussion here is about actual conduct, not charged conduct. Also, prosecutors usually inflate charges by increasing the number of charges per criminal incident (say, three dozen charges for a given bank robbery) rather than charging for incidents they can't attribute to the defendant.

[John F. Carr]

A proposed amendment to the sentencing guideline would limit the judge's ability to base a sentence on charges of which the defendant was found not guilty. The guidelines range would be based on the guilty verdict. The sentence within the range would be based on what really happened.

In Massachusetts state police sabotaged a case against a fellow officer who killed two women while driving drunk. Despite their testimony that the surviving driver was fine the prosecutor got a DUI conviction based on the blood test at the hospital. The sentencing range for simple DUI is 0-2 years. The usual sentence is no jail time, 45 day loss of license. The judge knew what was up and didn't like it, and sentenced the driver to 60 days. Still short of the mandatory minimum year in jail for DUI homicide, but well within the range for simple DUI. That is the sort of sentencing decision that is allowed now and will be allowed under the new guidelines.

[TwelveInchPianist]

"How is that not denying trial by jury, etc?"

Because we say it isn't.

[TwelveInchPianist]

"The Guidelines are generally determined by what the defendant actually did, not just what they get convicted of."

To be clear, they're determined by what the judge says the defendant did.

[Bubba Jones]

Layman question. If the plea agreement is unenforceable, is it moot? Can they void it if he refuses to abide by it voluntarily?

[John F. Carr]

The docket on courtlistener is too redacted to find out what the facts are. I'll make up an almost but not quite innocent example that fits the charges. He knows this girl who asks him for a ride (across state lines) to meet a friend. He doesn't know about this friend's intentions. According to prosecutors she is of "tender years" and can not consent to being taken from her parents. According to prosecutors he was willfully blind to the warning signs and can be considered to have known she was headed for a life of sin, debauchery, and CSI episodes. So you have somebody without subjective evil intention, so not at high risk for recidivism, but still in violation of the law.

Or he could have bashed her over the head, stuffed her in the trunk, and handed her over to his friend who he knew to be a pimp. But I think the prosecutor would have demanded more time in that case.

[Bob from Ohio]

"current law student wins a resounding victory for a pro se prisoner might seem to undermine the rationale for lawyer licensure"

Person who writes about legal topics is shocked to find out that law students sometimes argue cases under lawyer supervision. And even win!

Its only been going on for decades.

At least watch the ending of Legally Blonde.

[LawTalkingGuy]

Once listened to a prosecutor whine that a lot of death penalty or other appeals/post conviction proceeding were unfair against him because law school clinics often got involved under the direction of expert professors. I of course did not feel bad for him because it’s not like the state is actually hurting for resources in a high profile case. But I dagree with the idea that law students in a case bring significant legal firepower because they’ve got the time and patience to work through things under the direction of experienced practitioners in addition to access to a lot of other resources. None of which indicate lawyer licensing isn’t needed.

Also Legally Blonde is great and everyone should watch it.

[Dr. Ed 2]

My opinion of both the death penalty and post-conviction appeals changed when I saw *just* how incompetent the courthouse cadre actually were.

And I remember something that a retired DA once told me -- he really didn't mind losing cases because if the defendant was actually innocent, it was a good thing because he didn't want to put an innocent man in jail. However, otherwise, he knew that "he'll be back" and likely wouldn't be as lucky the next time.

The man was a product of an earlier era but I think he was right.

[SomeGuy 2]

I think you're missing the OP's somewhat dry wit here.

[Noscitur a sociis]

No, Bob from Ohio is correctly noting that the dry wit depends on misrepresenting the facts.

[Dr. Ed 2]

If you advise undergraduates for any length of time, and if they trust you, you are eventually are going to wind up going to court with them for moral support (and because you have a car).

I am neither an attorney nor do I pretend to be — I am a professor of education — but I was not impressed with the public defenders that these undergrads wound up with. I’d say that I could do a better job drunk than any of them could sober, except there was one whom I don’t think I ever did see sober. I personally knew/know some very bright lawyers and these idiots weren’t. They weren’t.

My point is that a competent attorney who gave a damn could clearly do a better job than I, but these kids had neither. It was an eye-opening experience and reflecting on it now, I’m neither a licensed EMT either, but I stop at accidents on rural roads and if I am the most qualified person present, then I’m the most qualified person present and am going to act accordingly…

Like I said, I have no doubt that I could have done a better job drunk (not that I ever would have) and hence don’t have an inherent respect for lawyer licensure, per se. Other than for sleeping with a client or stealing client funds, no one ever seems to get disbarred…

And as to “Legally Blonde”, remember that the licensed lawyer wanted to silence her — it was only because *another* lawyer stepped in that she was able to win that case. If that hadn’t happened, the movie would have ended with an innocent woman going to prison for a murder she didn’t commit.

[Noscitur a sociis]

I am neither an attorney nor do I pretend to be

And we have another lie!

[Davedave]

"I am a professor of education"

Well, you pretend to be. But even the educating fraternity aren't at _that_ low an ebb.

[Krayt]

He was making a joke about rareness, and provided separate examples from two circuits.

I actually expected a comedy rule of 3.

[Vandalia]

A question arising from the third case, coincidentally, from the Third Circuit:

The opinion begins, "We presume the parties’ familiarity with the case and set out only the facts needed for the discussion below." This is almost certainly true. However, this line seems to presume that an opinion is written only for the parties to a case. In the "olden days", a non-precedential opinion such as this would probably only be read by the parties. However, the very fact that this case is presented here shows that assumption is no longer valid.

To be fair, all the relevant facts are recited. But does the implied idea, "we don't need to do a detailed recital of the facts since this is the equivalent of an unpublished opinion" even hold anymore?

[LawTalkingGuy]

No. But the fact that unpublished opinions are now widely available is due to the fact that the internet and legal research has made them more accessible. This in turn makes information about underlying proceedings and case history (particularly in federal court) more widely accessible at least to lawyers.

[Vandalia]

As an addendum is interesting to compare with the "Creedence Clearwater Revival" case - which of course has nothing to do with them - where the court has a footnote with illustrative example of the concept of a "first lien."

Which gets to the fundamental question, what is the appropriate balance for writing opinions that are succinct and technically correct for lawyers, while at the same time making them accessible to the public?

[Dr. Ed 2]

While I don't know the extent the average judge is thinking about being appointed to a higher bench -- and the related confirmation hearings -- but to the extent they are, they don't want to write shoddy opinions that they'll have to explain later in confirmation hearings.

Remember what happened to Judge Bork?

[SRG]

Short Circuit seems particularly funny today. Keep it up!

[Brett Bellmore]

"Agents trace suspected producer of child pornography to Bettendorf, Iowa, escort him to a vehicle, repeatedly tell him he's free to leave whenever he wishes and can decline to answer questions. He answers questions for over ninety minutes"

I find myself wondering if they repeatedly told him he was free to leave while standing in the way of his vehicle.

[Currentsitguy]

I have less than zero sympathy for someone who gets off on child porn, but I know how that game goes for lots of people caught up in questioning.

A lot of people just don't have the brains to know the only words you utter when speaking to police is "I want a lawyer".

Short of talking about the weather or last night's game it's the only thing I'd ever say to a cop under any circumstances.

[LawTalkingGuy]

The other problem is that the judicial branch is largely willfully ignorant/completely delusional/or outright lying about how normal people feel in police interactions and whether they are actually “free to leave.” See for example the recent California Supreme Court case on whether the cops shining a spotlight on you signals that you’re free to leave

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Or Scalia (?) opining that police dogs are reliable when sniffing out contraband.

[LawTalkingGuy]

They almost all believe that. And they’re almost as credulous about human officers sniffing abilities regarding “raw marijuana.”

I’ve seen drug dogs in action while hanging out with the postal inspectors. They need warrants for packages and they get PC based on dog hits. But first they pick out packages that are actually suspicious for the dog to sniff: zip code of the office it’s coming from, lack of return address, sent to a motel, weird amount of paper and tape, etc. the dogs hit on each one and low and behold they all had drugs. But it really didn’t signal the dogs efficacy as much as it did the human inspectors investigating skills!

[bevis the lumberjack]

Yeah it’s been reasonably established that those dogs more often than not are responding to subtle, maybe unconscious, physical clues from their handler.

[bernard11]

But isn't this a broader problem with "forensic science" in general?

Bite marks come to mind, but I think there are other examples of "evidence" that turns out to be utterly bogus. And don't even mention "eyewitness testimony."

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I've lived long enough to know how absolutely unreliable my eyewitness recollection in. If I ever had to testify at a trial about what I'd seen, I'd keep it as general as possible, make it as clear as possible that I know my recollection is a sham, and if pressed and not shut up, I'd give examples of things where video contradicts my clear-as-a-bell memory.

I did once witness a near crime, got home, called 9-1-1, and sat down to write up everything as I remembered it before the police got there (I made it clear it was no emergency), including "dark blue recent BMW" and a partial plate. The cops were nice enough, but kept pushing me to be more definitive, and it really annoyed me. They later told me there was only one car matching but the owner lived 80 miles away. Best they could do was BOLO and give a DUI test.

I don't trust eyewitnesses as far as I can throw myself.

[David Nieporent]

My memory is reliable. My ability to describe people, however, is not. I don't literally have prosopagnosia, but I might as well. Anyone here who wants to mug me or break into my house, take note: I will not be able to describe you. (We do have security cams, though, so… do it at your own risk.) I will be able to narrow it down to male or female (no, people, this is not an invitation to talk about transgender stuff here), black or white, redhead/brunette/albino, kid/elderly/somewhere in between, and midget/NBA player/somewhere in between. And that's about it.

I'm guessing that sketch artists are used much less in real life than in TV police dramas, but if one ever does come to me, he'll be more likely to quit his job in disgust than produce anything usable.

"Yes, he had two ears. And I'm pretty sure there was a nose. Eyes? Yeah, sure. Those too. What'd they look like? Eyes. What color were they? I dunno; eye colored?"

[Davedave]

I was once asked to give a witness statement about an attempted mugging - including describing the man the police had handcuffed, who was standing in front of me. Since they had the right guy, and he was a dangerous idiot, I had no problem with describing very accurately what he looked like and was wearing.

I've also been involved in a case where there were three of us attacked, the police took the other two off into separate rooms to give statements, but allowed me to wander back and forth between the two rooms keeping the stories straight - and then when it went to court, I was the one called to give evidence to corroborate the stories, since I was the one without a written witness statement. Again, no doubt they had the right perp and he was guilty as sin, but not a great example of a fair process. Oddly enough, all three of my stories matched.

[David Nieporent]

Hey, Kagan wrote the awful decision in Florida v. Harris saying that it didn't even matter whether a dog was reliable in real life as long as it had been trained to find drugs.

[David Nieporent]

As I've noted before, the standard the courts actually apply is "Would a white middle aged male judge feel free to leave?"

[LawTalkingGuy]

Yes. The real standard should be: would I feel free to leave if I was suddenly struck mute and unable to say: I am a judge, or, I know the DA?

[gormadoc]

Pedophiles tend to be mentally retarded. It's something to think about with all the cases in which a pedophile was strangely helpful in their own investigation.

[MatthewSlyfield]

"the only words you utter when speaking to police is “I want a lawyer”."
You can also use "No Comment."

[David Nieporent]

No, you should not in fact use that. Salinas v. Texas: you're not invoking your rights simply by not answering the questions, which means that your refusal to answer can be used against you at trial.

[LawTalkingGuy]

The best thing to say upon being questioned by police is “I would like to talk to an attorney.” If it’s custodial the police should stop theoretically under Edwards. If it’s not. Well the police can either let you talk to one. Or it becomes custodial under edwards.

This of course will not be true in a few years. But it’s the rule for now.

[Dilan Esper]

That and also, if the cops say you are free to leave, say, "OK, then I am leaving" and try to leave.

[Ken Arromdee]

That seems like it would fail if the police claim you are free to leave but are blocking your way. If you actually try to leave they get you for assaulting an officer. I don't believe "they told me I was free to leave so I pushed the officer aside" is a legitimate defense.

[Noscitur a sociis]

If they in fact don’t let you leave when you try to, then you are not free to leave.

[Brett Bellmore]

Precisely my concern.

[Dilan Esper]

You don't have to, and should not, push an officer. Just say "I'm leaving, how do I get out, would you please move away from the door so I can leave?". If they don't move then say "so I am not in fact free to leave, then?" and ask to talk a lawyer.

[Ben_]

The other stuff in the summary indicates it probably doesn’t matter.

[Brett Bellmore]

Might not matter in that case, but I dislike the fiction that you're free to leave just because the cop who's obstructing your way utters the words.

[tkamenick]

Or maybe we should treat adults like adults and stop infantilizing them? You know it's actually OK that people decide to confess and admit their wrongdoing, right? That it's often a mental relief to do so? That some people realize they won't/can't stop what they're doing unless somebody makes them?

We all teach our children (I hope) that it's important to admit our mistakes and have integrity. We want them to be able to admit when they are wrong. I don't understand why this disappears so much as people age.

[Dilan Esper]

Voluntary confession is totally OK.

But, two things:

1. There is an entire police industry devoted to trying to get people who don't want to confess, including even innocent people, to confess. That's the point of the 5th Amendment, Miranda, etc.

2. There's an entire prosecutorial industry devoted to imposing unfair and draconian punishments, so it is far better if that power is restricted by a negotiated deal before any confession is given. The cops are trying to get the confession early so they can over-punish you.

[David Nieporent]

In the somewhat famous YouTube video by the conservative law professor telling people not to talk to the police (explaining why, even if you’re perfectly innocent and admit no wrongdoing, it can hurt you), he poses the rhetorical question, “But what’s wrong with confession? Don’t we want guilty people to confess? What if they want to unburden themselves, etc.? Why would we want to discourage that?”

And his answer is: yes, absolutely. It would be good for us and the souls of the guilty if they want to confess and do so. We should be happy if they voluntarily do. But there’s plenty of opportunity for them to do so if they truly want to.. We don’t need to speed along the process by having the police tricking them into making imcriminating statements at the beginning of an investigation. Let them first talk to a lawyer, their spouse, priests, whatever. And then if they want to unburden themselves, great!

(He also makes the point you make about punishments: even if the person is definitely guilty and deserves to go to jail, a lawyer can still serve to protect him from unfair and disproportionate punishment. )

[Currentsitguy]

Having worked in the energy sector now since 2004 in one capacity or another, and having had numerous dealings with FERC, I can safely paraphrase The Joker by saying "This Agency needs an enema!"

[Jerry B.]

“The Institute for Justice is now interviewing talented law students from across the country for our summer fellowship program’s…—offering $7,000 for the 10-week program…”

I identify as a talented law student. Sign me up.

[tkamenick]

"The agency has 21 days to give us a meaningful explanation for its delays."

*eyeroll* How about the agency has 21 days to actually do its job and issue a decision?

The protest case is horrible. The idea that any local government can just declare an assembly to be unlawful and that means it is unlawful flies in the face of so many constitutional protections.

[John F. Carr]

When you're looking for a permit from a local government there is often a rule saying the permit is deemed granted or denied if the town misses a deadline. FERC should be subject to a rule like that. Any judicial review would not defer to the agency's expertise because the agency did not use its expertise.

[George]

Hey, I just have a PhD in policy, not a JD, and I embarrassed a licensed attorney in a small claims court case involving a dispute with my HOA. I stipulated to facts of the case, but he called the management company's manager to testify to what I stipulated, and on cross-examination I got her to admit that they knew the law favored me before bringing the dispute. My only arguments were citing state statutes and case law on the illegality of having different rights and responsibilities for different homeowners. The magistrate was kind of tickled to have a case argued over points of law rather than facts, and informally admonished said attorney for not being aware of the law when he filed the case.

Law school isn't everything, and truthfully the first year covers the material for the bar exam at most schools, while the remaining two years exist to fund professor's salaries and serve as a cartel barrier to entry into the legal services industry.